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Exhibit 10.3
FIBER OPTIC CONDUIT AGREEMENT
BETWEEN
NORTH AMERICAN INFOTECH, LLC
("NAIT")
AND
THOROUGHBRED TECHNOLOGY AND TELECOMMUNICATIONS, INC.
("T-CUBED")
Dated August 15, 2000
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TABLE OF CONTENTS
ARTICLES
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ARTICLE 1 DEFINITIONS.......................................................2
ARTICLE 2 TERM..............................................................3
Section 2.01. Term..........................................................3
Section 2.02. Relationship after Termination................................4
ARTICLE 3 DOCUMENTATION.....................................................4
Section 3.01. Fiber Optic Conduit Agreement.................................4
Section 3.02. Right-of-Way Entry Agreement..................................4
Section 3.03. Bill of Sale..................................................4
Section 3.04. Right-of-Way Sublease Agreement...............................4
Section 3.05. Fiber Use Agreement...........................................4
Section 3.06. Co-occupancy Agreement........................................4
Section 3.07. Additional Documentation......................................4
Section 3.08. Priority of Documents.........................................5
ARTICLE 4 PROJECT SCOPE.....................................................5
Section 4.01. Installation of Conduit System in Segments
and Subsegments...............................................5
Section 4.02. Conduit System Specifications.................................5
Section 4.03. Ownership of Conduit System and Ducts.........................5
Section 4.04. Regen Sites...................................................5
ARTICLE 5 COMPENSATION......................................................6
Section 5.01. Duct Purchase Price...........................................6
Section 5.02. Prepaid Rental................................................6
Section 5.03. IRU...........................................................6
Section 5.04. Adjustments...................................................6
Section 5.05. Assurances....................................................6
ARTICLE 6 PROSECUTION OF PROJECT WORK.......................................7
Section 6.01. Site Availability.............................................7
Section 6.02. Engineering and Design Services...............................7
Section 6.03. Conduit Construction..........................................8
Section 6.04. Changes.......................................................8
Section 6.05. Inspection, Testing and Acceptance............................8
ARTICLE 7 DELIVERY AND PURCHASE OF THE NAIT DUCTS...........................9
Section 7.01. Subsegment Closings...........................................9
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TABLE OF CONTENTS
Section 7.02. Segment Closings and Project Closing..........................9
ARTICLE 8 TAX MATTERS......................................................10
Section 8.01. Transfer Taxes...............................................10
Section 8.02. NAIT's Obligations...........................................10
Section 8.03. T-Cubed's Obligations........................................10
Section 8.04. Reimbursement of Taxes Paid on the Other's Behalf............10
Section 8.05. Cooperation..................................................10
ARTICLE 9 INDEMNIFICATION..................................................10
Section 9.01. General Obligation to Indemnify and Defend...................10
Section 9.02. Defense of Property Rights...................................11
Section 9.03. Notice and Defense of Claims.................................11
Section 9.04. Claims Against Other Parties.................................12
Section 9.05. Limitation on Claims.........................................12
ARTICLE 10 CONDEMNATION....................................................12
Section 10.01. Material Taking..............................................12
Section 10.02. Non-Material Taking..........................................13
ARTICLE 11 REPRESENTATIONS AND WARRANTIES..................................13
ARTICLE 12 DEFAULTS AND REMEDIES...........................................13
Section 12.01. Events of Default............................................13
Section 12.02. Termination Upon Failure to Cure.............................14
ARTICLE 13 ARBITRATION.....................................................14
Section 13.01. Commencement of Arbitration..................................14
Section 13.02. Appointment of Arbitrators...................................14
Section 13.03. Arbitration Proceeding.......................................14
Section 13.04. Arbitration Venue; Other.....................................15
ARTICLE 14 CONFIDENTIALITY.................................................15
Section 14.01. Treatment of Confidential Information........................15
Section 14.02. Compelled Disclosure of Confidential Information.............15
ARTICLE 15 NOTICES.........................................................15
ARTICLE 16 MISCELLANEOUS...................................................16
Section 16.01. Binding Effect of Agreement..................................16
Section 16.02. Cumulative Remedies..........................................16
Section 16.03. Failure to Pursue Remedies...................................16
Section 16.04. Governing Law................................................16
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TABLE OF CONTENTS
Section 16.05. Integration..................................................16
Section 16.06. Interpretation...............................................17
Section 16.07. Force Majeure................................................17
Section 16.08. Recordation..................................................17
Section 16.09. Severability.................................................17
Section 16.10. Survival of Obligations......................................17
ATTACHMENTS
I. BILL OF SALE
II. RIGHT-OF-WAY
III. FIBER USE AGREEMENT
IV. CO-OCCUPANCY AGREEMENT
SCHEDULES
A-1 Memphis - Chattanooga Segment (Route Description)
A-2 Atlanta - Chattanooga Segment (Route Description)
B Conduit System Specifications
C-1 Duct Purchase Price And Pre-Paid Rent Schedule For
The Memphis - Chattanooga Segment
C-2 Duct Purchase Price And Pre-Paid Rent Schedule For
The Atlanta - Chattanooga Segment
EXHIBIT
A Reps and Warranties Disclosure Exhibit
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FIBER OPTIC CONDUIT AGREEMENT
THIS FIBER OPTIC CONDUIT AGREEMENT (this "Agreement"), dated as of
August 15, 2000, by and between THOROUGHBRED TECHNOLOGY AND TELECOMMUNICATIONS,
INC., a corporation organized and existing under the laws of the Commonwealth
of Virginia, with an office at Three Commercial Place, Norfolk, Virginia
235109235 ("T-Cubed"), and NORTH AMERICAN INFOTECH, LLC, a limited liability
company organized and existing under the laws of the State of Delaware, with an
office at 751 County Road 989, Iuka, Mississippi 38852 ("NAIT").
RECITALS
WHEREAS, T-Cubed, pursuant to a telecommunications services agreement
between T-Cubed, on the one hand, and Norfolk Southern Railway Company and
Norfolk Southern Properties, Inc. (collectively "Railroad"), on the other, has
an obligation to provide telecommunications services to support Railroad's
railroad business;
WHEREAS, to assist T-Cubed in fulfilling its obligation, Railroad has
accorded T-Cubed certain rights and privileges with respect to its property,
including the right to lease, and sublease to others, Railroad's rights-of-way;
WHEREAS, Railroad needs telecommunications infrastructure, including
optical fibers, to support its business on or about the rights-of-way covered
by this Agreement, and T-Cubed does not have the present ability to install or
operate such infrastructure on its own;
WHEREAS, NAIT expects to be engaged in various aspects of the
telecommunications business, including the installation and operation of fiber
optic communications systems, and NAIT wishes to purchase from T-Cubed and
utilize in its telecommunications business certain components of such a system
installed in the rights-of-way covered by this Agreement; and
WHEREAS, T-Cubed and NAIT have determined that it is technically and
commercially feasible for the fiber optic facilities required by Railroad and
T-Cubed, on the one hand, and NAIT, on the other hand, to co-occupy a system
installed in the rights-of-way covered by this Agreement, and that each of
Railroad, T-Cubed and NAIT will derive benefits from such co-occupancy;
NOW, THEREFORE, in consideration of the covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
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ARTICLE 1
DEFINITIONS
In, and for the purposes of, this Agreement, certain terms shall have
the meanings assigned to them as follows:
"Additional Documentation" shall have the meaning set forth in Section
3.06.
"Cable" means a fiber optic cable, the optical fibers contained
therein and any protective casing, and associated splice connections, splice
boxes and vaults to be installed as part of the Project. "Cable" does not
include any electronics or optronics necessary to create telecommunications
capacity on fibers in a Cable.
"Conduit" shall mean a structure containing one or more Ducts.
"Conduit System" shall mean any system of telecommunications Conduit,
including pull boxes, handholes, manholes, markers and other related
facilities, which is to be established in the Segments, and which, except for
the NAIT Ducts, will be owned by T-Cubed. Conduit System does not include any
Equipment Shelter or any Regen Site.
"Conduit System Specifications" means the maps, drawings, plans and
specifications for the construction and installation of the Conduit System and
related facilities for the Segments, showing, by way of example and not of
limitation: (i) the proposed location of all Fiber Optic Facilities, including
the Conduit System, and their respective distance from the nearest railroad
track; (ii) the number and size of Conduit(s) and Ducts to be installed; and
(iii) the total mileage for the Segments. The Conduit System Specifications are
set forth in Schedule B hereto.
"Duct" shall mean a single enclosed pipe, raceway or inner-duct
suitable for the installation of Cables and shall include pull boxes,
handholes, manholes, markers and other related facilities.
"Equipment Shelter" means any structure utilized to house
regeneration, amplification, electronic, optronic or other equipment to be used
in connection with the establishment and operation of telecommunications
capacity on the Conduit System.
"Fiber Optic" or "Optical Fiber" shall mean a strand of optical
waveguide permitting the transmission of communications signals.
"Fiber Optic Facilities" means a fiber optic telecommunications
transmission system and certain appurtenant equipment and structures.
"Indefeasible Right To Use" or "IRU" shall mean a long-term right to
use Optical Fibers and associated equipment, and shall include all indicia of
ownership in such Optical Fibers, including unrestricted rights of use, with
the exception of legal title to the physical Optical Fibers.
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"NAIT Ducts" means the two (2) continuous, vacant, proofed Ducts in
the Conduit System that NAIT has agreed to purchase from T-Cubed under the
terms and conditions of this Agreement.
"NAIT Facilities" means the NAIT Ducts, any Cables in the NAIT Ducts
and any associated equipment installed for and owned by NAIT.
"Project" means the totality of the undertakings of the parties under
this Agreement.
"Regen Site" means the site of an optical signal device, which
regenerates, amplifies or extends optical signals through optical fiber,
together with any associated equipment, facilities, and power source, and the
Equipment Shelter in which it is housed.
"SCADA" means Supervisory Control and Data Acquisition.
"Segments" means the Railroad right-of-way segments specified in
Section 4.01.
"Subsegment" means a portion of a Segment in which T-Cubed has
completed installation of the Conduit System.
"Third-party Section" shall have the meaning assigned in Section 6.01.
ARTICLE 2
TERM
Section 2.01. Term. The term of this Agreement shall commence on the
date first written above and shall terminate (unless terminated earlier under
Sections 9.02, 10.01 or 12.02):
(a) upon the mutual written agreement of T-Cubed and NAIT; or
(b) at such time as:
(i) with respect to each Subsegment, (A) the
Conduit System has been completed in such Subsegment, and (B)
the parties have conducted a "Subsegment Closing" under
Section 7.01 transferring ownership of the NAIT Ducts in such
Subsegment;
(ii) with respect to each Segment, (A) the
Conduit System has been completed in such Segment, and (B)
the parties have conducted a "Segment Closing under Section
7.02 transferring ownership of the NAIT Ducts in the Segment;
and
(iii) with respect to the Project and this
Agreement, (A) all of the Subsegment and Segment Closings
have been completed, and (B) the parties have conducted the
"Project Closing" under Section 7.02 with respect to the
Project.
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Section 2.02. Relationship after Termination. After the termination of
this Agreement in accordance with the foregoing Section 2.01, the relationship
between the parties shall be governed by the terms of the Right-of-Way Sublease
Agreement, Fiber Use Agreement, Co-occupancy Agreement and any Additional
Documentation as the parties may enter into in furtherance of the Project.
ARTICLE 3
DOCUMENTATION
Section 3.01. Fiber Optic Conduit Agreement. The parties intend for
this Agreement to provide a framework for T-Cubed's delivery, and NAIT's
purchase, of the NAIT Ducts.
Section 3.02. Right-of-Way Entry Agreement. The parties and Railroad
have entered into a "Right-of-Way Entry Agreement" of even date herewith. That
Right-of-Way-Entry Agreement replaces and supersedes any and all previous
agreements between the parties with regard to NAIT's right of entry on, or
other access to or use of, certain property of Railroad.
Section 3.03. Bill of Sale. The parties anticipate the delivery to
NAIT by T-Cubed of one or more "Bill of Sale," which, individually or
collectively, will convey to NAIT all right and title to the NAIT Ducts in the
Segments. The form of said Bill of Sale is set forth as "Attachment I" hereto.
Section 3.04. Right-of-Way Sublease Agreement. The parties anticipate
entering into one or more "Right-of-Way Sublease Agreement," in the form set
forth in "Attachment II" hereto, which will set forth the terms and conditions
pursuant to which NAIT will have the right to maintain the NAIT Ducts in the
Segments for the Initial Term (as defined in the Right-of-Way Sublease
Agreement). The parties intend that each Right-of-Way Sublease Agreement
(i)constitutes a lease of tangible property for tax purposes and (ii)
constitutes a "section 467 rental agreement" within the meaning of section 467
of the Code, and the regulations promulgated thereunder.
Section 3.05. Fiber Use Agreement. The parties anticipate entering
into one or more "Fiber Use Agreement," in the form set forth in "Attachment
III" hereto, which will set forth the terms and conditions pursuant to which
T-Cubed will have an Indefeasible Right To Use one pair of dedicated Optical
Fibers in a Cable installed in one of the NAIT Ducts.
Section 3.06. Co-occupancy Agreement. The parties anticipate entering
into one or more "Co-occupancy Agreement," in the form set forth in "Attachment
IV" hereto, which will set forth the terms and conditions pursuant to which
T-Cubed and NAIT will access and maintain their respective facilities within
the Conduit System.
Section 3.07. Additional Documentation. The parties anticipate that
the fulfillment of the objectives of this Agreement may require the execution
and delivery of instruments or documents not specified here ("Additional
Documentation").
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Section 3.08. Priority of Documents. In the event of a conflict or
inconsistency between this Agreement and the terms of any Right-of-Way Entry
Agreement, Bill of Sale, Right-of-Way Sublease Agreement, Fiber Use Agreement,
or Additional Documentation (individually an "Other Document" and two or more
collectively "Other Documents"), the terms of the Other Document shall in all
cases prevail when interpreting and applying the terms of the Other Document,
but only with regard to the specific Other Document, and not with regard to
Other Documents of the same nature, unless the Other Documents contain the same
language, in the same context, as gave rise to the conflict or inconsistency
with this Agreement.
ARTICLE 4
PROJECT SCOPE
Section 4.01. Installation of Conduit System in Segments and
Subsegments. T-Cubed is installing a Conduit System, in which the NAIT Ducts
will be included, in segments of Railroad's right-of-way which run between: (i)
Memphis, Tennessee and Chattanooga, Tennessee, which segment is more fully
described in Schedule A-1 (the "Memphis Chattanooga Segment"); and (ii)
Atlanta, Georgia and Chattanooga, Tennessee, which segment is more fully
described in Schedule A-2 (the Atlanta - Chattanooga Segment"). The parties
acknowledge that it is in their mutual interests for T-Cubed to complete and
deliver the NAIT Ducts in the Conduit System in Subsegments within the Segments
in order to allow, prior to completion of the entire Project, (i) NAIT to
commence installation of Cable and other Fiber Optic Facilities in the NAIT
Ducts, and (ii) T-Cubed to receive incremental payments of the Duct purchase
price and the prepaid rental for the Segments. The parties further acknowledge
that the location and number of the Subsegments within the Segments, the length
and continuity of each Subsegment, and the sequence in which the Subsegments
are built out and the NAIT Ducts therein delivered to NAIT, will depend on
Railroad-related use of the Segments for railroad operations, and therefore
shall be left to the discretion of T-Cubed; provided, however, that in
determining the Subsegments, T-Cubed shall take into account NAIT's need to
carry out further construction activities utilizing the NAIT Ducts in a timely
and cost-effective manner.
Section 4.02. Conduit System Specifications. The Conduit System shall
be constructed in accordance with the Conduit System Specifications set forth
in Schedule B. NAIT acknowledges that it has reviewed and approved the Conduit
System Specifications.
Section 4.03. Ownership of Conduit System and Ducts. During
construction, the Conduit System shall be the property of T-Cubed. Upon
satisfaction of the mutual terms and conditions of this Agreement, T-Cubed
shall deliver and NAIT shall purchase the NAIT Ducts, which thereafter shall be
the property of NAIT.
Section 4.04. Regen Sites. Although NAIT has sole responsibility for
securing any Regen Sites and any Equipment Shelters required for the NAIT
Facilities, NAIT and T-Cubed will cooperate in efforts to secure Regen Sites
for joint occupancy and use by NAIT and one or more of T-Cubed, the Railroad
and such other parties as may purchase or lease any of the Ducts retained by
T-Cubed in the Conduit System, or any Cable or Optical Fiber capacity therein.
With regard
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to each such joint-use Regen Site, the parties may negotiate, prepare and enter
into a lease, sublease, co-occupancy agreement, or other agreement, as
appropriate.
ARTICLE 5
COMPENSATION
Section 5.01. Duct Purchase Price. As consideration for T-Cubed's
transfer to NAIT of the NAIT Ducts in each Subsegment and the Segments, NAIT
shall pay to T-Cubed the Duct purchase price specified in, at the times
specified in, Schedule C-1 and C-2. The parties acknowledge that the payments
specified in Schedule C-1 and C-2 are subject to adjustment upon final
determination of Segment end-points and total mileage.
Section 5.02. Prepaid Rental. As consideration for the NAIT Ducts'
occupancy of Railroad's right-of-way in the Segments for the Initial Term
specified in the Right-of-Way Sublease Agreement, NAIT will pay to T-Cubed the
prepaid rental specified in, at the times specified in, Schedule C-1 and C-2.
NAIT and T-Cubed agree that, for tax purposes, they will account for the
prepaid rental consistent with the rules applicable to prepaid rental under a
section 467 rental agreement.
Section 5.03. IRU. In further consideration of T-Cubed's undertakings
herein, NAIT shall grant T-Cubed an Indefeasible Right To Use a pair of
dedicated Optical Fibers in a Cable installed in one of the NAIT Ducts in each
Segment for T-Cubed and railroad-related voice, data, SCADA and internal
administrative communications. Each IRU shall be for a term beginning with
NAIT's initial activation of fiber on the Segment, and terminating on the
termination date of the respective Right-of-Way Sublease Agreement, and shall
provide for T-Cubed to have access to the dedicated Optical Fibers at various
locations to be designated throughout the term of the IRU. Prior to the
termination of this Agreement with respect to a Subsegment pursuant to Section
2.01, T-Cubed and NAIT shall enter into a Fiber Use Agreement, in the form set
forth as Attachment III, for the Subsegment.
Section 5.04. Adjustments. On or prior to the date this Agreement is
to terminate pursuant to Section 2.01, the parties shall determine any amounts
each may have owing to the other, including, by way of example and not of
limitation, (i) any amounts NAIT may owe to T-Cubed on account of changes to
Project specifications pursuant to Section 6.05, and (ii) any adjustments to
Duct purchase payments or prepaid rental upon final determination of Segment
end- points and total mileage. The amounts so determined as owed to each party
and by each party (i) first shall be offset to the extent of any amount owed by
the other party, and (ii) with any excess owed to one party after such offset
shall be paid by the other party on the date of termination.
Section 5.05. Assurances. Both parties hereto acknowledge and agree
that either party shall be entitled to receive from the other party from time
to time during the Term reasonable assurances of the other party's ability to
perform its obligations hereunder, including financial and project work
obligations, and both parties agree promptly to provide such assurances
acceptable
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in form and content to the other party's reasonable satisfaction. As used in
the preceding sentence, "reasonable assurances" regarding NAIT's ability to
perform its financial obligations may include the posting of a letter of
credit, procurement of a "highly confident" letter, or other proof of adequate
and available funds in T-Cubed's reasonable judgment. Failures to provide
assurances hereunder shall be subject to the default, notice and cure
provisions of Section 12.01(d) and the termination provisions of Section 12.02.
ARTICLE 6
PROSECUTION OF PROJECT WORK
Section 6.01. Site Availability. T-Cubed, in reliance on the property
rights it has obtained through its telecommunications services agreements with
the Railroad, will make those property rights available for use in connection
with the Project, so as to support (i) its own construction, ownership and
operation of the Conduit System in the Segments, and (ii) to provide NAIT with
(A) ownership of the NAIT Ducts in the Segments and (B) certain right-of-way
occupancy rights in the Segments for the term of the Right-of-Way Sublease
Agreement; provided, however, that as to those portions of the Segments
identified in Schedules A-l and A-2 in respect of which T-Cubed does not
currently have property or access rights (the "Third-party Sections"), T-Cubed
shall use commercially reasonable efforts to secure such rights at its sole
cost for the period prescribed in Schedules A-l and A-2. In the event T-Cubed
secures such rights, NAIT agrees to be bound by the terms and conditions
thereof in respect of the NAIT Facilities' occupancy of the Third-party
Section, and to enter into appropriate sublease, sublicense, partial assignment
or other documentation evidencing the same; provided, however, that NAIT's fees
for such sublease, sublicense or partial assignment shall be the amount that
NAIT would pay as, payable in the manner of (subject to adjustments under
Section 5.04), and deemed to be, prepaid rental as if NAIT were occupying the
Third-party Sections pursuant to the Right-of-Way Sublease Agreement; provided,
further, that NAIT shall not be required to pay any additional fees for
occupancy of the Third-party Sections other than such amounts paid as prepaid
rental, but shall pay its pro rata share (based on the number of NAIT Ducts in
the Conduit System) of flagging and similar costs in connection with Cable
installation, if any, assessed by the holder of the Third-party Sections. In
the event T-Cubed is unable to secure rights in the Third-party Sections within
the prescribed period, the parties shall work together to secure alternative
routes to complete the Segments , with each party bearing fifty percent (50%)
of the costs of such alternative routes if secured; provided, however, that if
such routes cannot be obtained within one hundred and eighty (180) days of the
effective date of this Agreement on mutually acceptable terms, either patty
shall have the right to terminate this Agreement as to the affected Third-party
Section; provided, further, that if this Agreement is terminated by either
party under the preceding clause of this Section 6.01, T-Cubed shall refund to
NAIT a pro rata share, based on the affected Third-party Section's mileage, of
any amounts NAIT has theretofore paid T-Cubed as prepaid rental and the Duct
purchase price for the affected Segment.
Section 6.02. Engineering and Design Services. T-Cubed will provide,
at its sole cost, all engineering and system design services, engineering
materials, surveying services, and flagmen for the design phase of the Conduit
System.
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Section 6.03. Conduit Construction. T-Cubed will provide, at its sole
cost, all construction services, labor and materials (including flagmen,
permitting, licensing and inspection) for the Conduit System; provided,
however, that T-Cubed may elect to have Tishomingo Railroad provide locomotive
power for conduit construction. T-Cubed shall be responsible for the
performance of all work required for the construction of the Conduit System in
accordance with the Conduit System Specifications. Such work may include, but
may not be limited to, hiring and managing contractors, coordinating access
with Railroad, obtaining approvals of plans, and obtaining construction and
environmental permits. T-Cubed shall prosecute all of its assigned work in a
prompt and diligent manner.
Upon the commencement of the construction work in a Segment, T-Cubed
shall designate a construction manager ("Manager") who shall act as its
authorized representative and manager in connection with the construction work
on that Segment. NAIT shall have the right, but not the obligation, to inspect
the construction work from time to time prior to its completion, subject to the
terms of the Right-of-Way Entry Agreement.
Section 6.04. Changes. In the event NAIT seeks changes in, additions
to, or deletions from any specifications in the Conduit System Specifications,
NAIT shall notify T-Cubed of its proposed changes, additions or deletions. Upon
receipt of notification of NAIT's proposed changes, T-Cubed shall promptly
notify NAIT of (i) the estimated cost of the proposed changes, additions or
deletions; (ii) the effect of the proposed changes, additions or deletions upon
the scheduled completion of the work; and (iii) whether additional
authorizations or permits are required as a result of the proposed changes,
additions or deletions. Both parties shall agree in writing within twenty (20)
days to the proposed changes, additions or deletions, or said changes,
additions or deletions shall be deemed not accepted by the other party. Upon
receipt of the written amendment to the contract, T-Cubed shall promptly
proceed with the performance of the relevant Project work, as so modified.
Section 6.05. Inspection, Testing and Acceptance. Upon completion of a
portion of the Conduit System in a Subsegment, T-Cubed shall perform completion
testing, including, but not limited to, Duct "proofing," on the Conduit System
in that portion to determine conformity with the Conduit System Specifications.
T-Cubed shall give NAIT at least five (5) business days prior notice of the
date and time of such completion testing, and NAIT shall have the right, but
not the obligation, to be present for observation of said testing.
When T-Cubed reasonably determines that the Conduit System has been
constructed in a Subsegment substantially in conformity with the Conduit System
Specifications, it shall provide notice to NAIT (i) certifying that the NAIT
Ducts in the Conduit System in such Subsegment are available for acceptance,
and (ii) specifying the location and mileage of such Subsegment (a "Completion
Notice"). Upon receipt of a Completion Notice, NAIT may inspect the work
performed by T-Cubed, and shall have ten (10) business days to either accept or
reject the Completion Notice (specifying, if rejected, any and all objections
to, or deficiencies in, such Project work) by delivery of written notice to
T-Cubed.
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In the event NAIT rejects the Completion Notice, T-Cubed shall resolve
the objections and deficiencies cited therein and perform a retest as soon as
practicable. Thereafter, T-Cubed shall again give NAIT a Completion Notice with
respect to the relevant work. This reiterative procedure shall apply again and
successively until T-Cubed has remedied all material deficiencies in the
relevant work. If NAIT fails to reject a Completion Notice within the ten (10)
business day period, the subject work shall be deemed accepted by NAIT, and
T-Cubed shall have no further liability related to the conformity of that
portion of the Conduit System and the NAIT Ducts therein to the Conduit System
Specifications.
ARTICLE 7
DELIVERY AND PURCHASE OF THE NAIT DUCTS
Section 7.01. Subsegment Closings. Upon (i) the completion of
construction of the Conduit System in a Subsegment, and (ii) delivery and
acceptance of a Completion Notice, T-Cubed shall deliver, and NAIT shall
purchase, the NAIT Ducts covered by such Completion Notice. To effectuate such
delivery and purchase, the parties shall conduct a "Subsegment Closing," at
which they shall deliver or exchange, as appropriate, (1) one or more Bill of
Sale, in the form set forth in "Attachment I" hereto, which, individually or
collectively, convey to NAIT all right and title to the NAIT Ducts in the
Subsegment; (2) one or more Right-of-Way Sublease Agreement, in the form set
forth in "Attachment II" hereto, which, individually or collectively, grant
NAIT the right to maintain the NAIT Ducts in the Subsegment; (3) one or more
Fiber Use Agreement, in the form set forth in "Attachment III" hereto, which,
individually or collectively, grant T-Cubed an IRU for Optical Fiber in the
NAIT Ducts in the respective Subsegment; (4) one or more Co-Occupancy
Agreement, in the form set forth in "Attachment IV" hereto, which, individually
or collectively, set forth the parties' respective maintenance obligations in
respect of their property in the Conduit System; (5) all duct purchase payments
and prepaid rental due at the respective Subsegment Closing; (6) all payments
due at the respective Subsegment Closing pursuant to adjustments made in
accordance with Section 5.04 and in accordance with Schedule C; and (6) any
Additional Documentation anticipated by Section 3.06 as may be necessary or
appropriate to effectuate the Subsegment Closing.
Section 7.02. Segment Closings and Project Closing. Upon completion of
all of the Subsegment Closings for a Segment (or at the time of the final
Subsegment Closing), the parties shall conduct a "Segment Closing," at which
they will deliver or exchange, as appropriate, all documentation and payments
necessary for the fulfillment and completion of all of their respective
obligations in respect of such Segment under this Agreement. Upon completion of
all of the Segment Closings, the parties shall conduct a "Project Closing," at
which they will deliver or exchange, as appropriate, all documentation and
payment necessary for the fulfillment and completion of all of the respective
obligations in respect of the Project under this Agreement.
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ARTICLE 8
TAX MATTERS
Section 8.01. Transfer Taxes. NAIT shall pay all real estate transfer
taxes and sales and use taxes together with any interest and penalty, if any,
imposed by law with respect to (i) the conveyance to NAIT of all right and
title to the NAIT Ducts, and (ii) the sublease to NAIT of the Segments.
Section 8.02. NAIT's Obligations. NAIT shall timely report, make
filings for, and pay any and all income, gross receipts, excise, ad valorem, or
other taxes, and any and all franchise fees or similar fees assessed together
with any interest and penalty, if any, due with respect to the NAIT Ducts,
Fiber Optic Facilities installed therein or thereon, or the portion of the
Segments occupied by the foregoing.
Section 8.03. T-Cubed's Obligations. Except as otherwise set out in
Sections 8.01 and 8.02 above, T-Cubed shall timely report, make filings for and
pay any and all sales, use, income, gross receipts, excise, transfer, ad
valorem or other taxes, and any and all franchise fees or similar fees assessed
together with any interest and penalty, if any, due with respect to the
Segments, Conduit System, Conduit Right-of-Way or the Fiber Use Agreements
(from and after the effective date of such Fiber Use Agreements) with respect
to dedicated optical fibers granted to T-Cubed.
Section 8.04. Reimbursement of Taxes Paid on the Other's Behalf. If
T-Cubed or Railroad is assessed for any taxes, fees, interest or penalties
which NAIT is obligated to pay pursuant to Section 8.01 and 8.02, NAIT shall
reimburse T-Cubed or Railroad for any payment of such taxes or fees. If NAIT is
assessed for any taxes, fees, interest or penalties which T-Cubed is obligated
to pay pursuant to Section 8.03, T-Cubed shall reimburse NAIT for any payment
of such taxes or fees.
Section 8.05. Cooperation. The parties shall cooperate in any contest
of any taxes or fees and in making tax-related reports and filings, so as to
avoid, to the extent reasonably possible, prejudicing the interests of the
other party.
ARTICLE 9
INDEMNIFICATION
Section 9.01. General Obligation to Indemnify and Defend. Except to
the extent the following claims are caused by the negligence or intentional
misconduct of the parties indemnified hereunder, each party to this Agreement
shall defend, indemnify and hold harmless the other, its affiliates and each of
its directors, officers, agents, employees, representatives and contractors or
subcontractors, from and against, and shall pay, all losses, damages,
liabilities, penalties, fines, assessments, claims and actions, and all related
expenses (including reasonable attorneys' fees and expenses and the costs of
litigation) by reason of injury or death to any person, damage to any property
or any other occurrence arising out of, resulting from or in any manner caused
by the Project-related acts or omissions of the indemnifying party or of those
for whom the indemnifying
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party is legally liable. NAIT specifically acknowledges and agrees that
Railroad is an intended beneficiary of this provision. This general obligation
of each party to indemnify and defend the other shall survive the termination
of this Agreement, unless subsequent agreements between the parties
specifically release, assume or modify any general indemnification or defense
obligations established herein.
Section 9.02. Defense of Property Rights. During the term of this
Agreement, T-Cubed shall maintain and defend all property rights legally
necessary, in T-Cubed's sole discretion, for the construction and installation
of the Conduit System, including the NAIT Ducts. If, in connection with a
proceeding challenging such property rights, construction of the Conduit System
is enjoined, by preliminary or permanent injunction issued by a court having
jurisdiction over the parties or the Segments, T-Cubed, in its sole discretion,
may elect to terminate this Agreement. In the event T-Cubed, pursuant to this
Section, elects to terminate this Agreement in accordance with the preceding
sentence, T-Cubed, on or before the date on which any termination becomes
effective, shall return to NAIT all monies actually paid to T-Cubed by NAIT
with respect to the Segments and pursuant to Sections 5.01 and 5.02.
Section 9.03. Notice and Defense of Claims. The parties agree to
promptly provide each other with notice of any lawsuit, judicial,
administrative or other dispute resolution action, proceeding or claim of which
it becomes aware and which it believes may result in an indemnification
obligation hereunder (each, an "Action"); provided that the failure to provide
any such notice shall not affect the indemnifying party's indemnification
obligation unless the indemnifying party is actually prejudiced by the failure
to receive such notice and then only to the extent of such prejudice. After
receipt of any such notice, if the indemnifying party shall acknowledge in
writing to the indemnified party that the indemnifying party shall be obligated
under the terms of the indemnity hereunder in connection with such Action, then
the indemnifying party shall be entitled, if it so elects (i) to take control
of the investigation and defense of such Action, (ii) to employ and engage
attorneys of its own choice, which are reasonably acceptable to the indemnified
party, to handle and defend the same, at the indemnifying party's cost, risk
and expense, unless the named parties to such action or proceeding include both
the indemnifying party and the indemnified party and the indemnified party has
been advised in writing by counsel that there may be one or more legal defenses
available to such indemnified party that are different from or additional to
those available to the indemnifying party, in which case the indemnified party
shall also have the right to employ its own counsel in any such case with the
reasonable fees and expenses of such counsel being borne by the indemnifying
party, and (iii) to compromise or settle such Action, which compromise or
settlement shall be made only with the written consent of the indemnified
party, such consent not to be unreasonably withheld or delayed, provided,
however, such consent of the indemnified party is not required if such
settlement, compromise or consent includes, as an unconditional term thereof
given by the claimant or the plaintiff to the indemnified party, a full release
from all liability in respect of such indemnifiable claim. Notwithstanding
anything in this Article 9 to the contrary, (i) if there is a reasonable
probability that an indemnifiable claim may materially adversely affect the
indemnified party, other than as a result of money damages or other money
payments, the indemnified party shall have the right to participate in such
defense, compromise or settlement, and the indemnifying party shall not,
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without the indemnified party's written consent (which consent shall not be
unreasonably withheld or delayed), settle or compromise any indemnifiable claim
or consent to entry of any judgment in respect thereof unless such settlement,
compromise or consent includes as an unconditional term thereof given by the
claimant or the plaintiff to the indemnified party a full release from all
liability in respect of such indemnifiable claim. In all such cases, the
indemnified party shall cooperate in the defense of the Action.
Section 9.04. Claims Against Other Parties. Except as set forth
herein, and subject to the terms of any underlying agreements between T-Cubed
and any third person, nothing contained herein shall operate as a limitation on
the right of either party hereto to bring an action for damages against any
third person, including indirect, special or consequential damages, based on
any acts or omissions of such third person as such acts or omissions may affect
the design or construction of the Conduit System, including the NAIT Ducts;
provided, however, that each party hereto shall assign such rights of claims,
execute such documents, and do whatever else may be reasonably necessary to
enable the other party to pursue any such action against such third person.
Section 9.05. Limitation on Claims. Notwithstanding any other
provision of this Agreement, neither party shall be liable to the other for any
special, indirect, punitive, exemplary, incidental, or consequential damages of
any type due to claims (including, but not limited to, any claims (i) for lost
revenues or profits, (ii) by customers for lost services, or (iii) for any cost
of replacement facilities or services) arising under this Agreement or from the
breach or partial breach of any provision of this Agreement.
ARTICLE 10
CONDEMNATION
Section 10.01. Material Taking. In the event of a material taking or
condemnation by any competent authority for any public or quasi-public use or
purpose of the whole or a part of the railroad right-of-way occupied by the
Conduit System during the term hereof, this Agreement shall terminate upon
vesting of title in, or taking of possession by, the condemnor, whichever
occurs first. For purposes of this Section 10.01, a "material taking" shall
mean a taking under the conditions in the preceding sentence that renders the
Fiber Optic Facilities utilizing the Conduit System (i) inoperable in a
commercially reasonable manner, and (ii) incapable of restoration to service
within 6 months of the date of the taking without the expenditure by T-Cubed or
NAIT of commercially unreasonable sums. In the event of a material taking, NAIT
shall receive compensation only for the taking and damaging of the NAIT
Facilities, relocation expenses and loss of business or interference with
NAIT's operations and, as to the last three such items, only to the extent
separately awarded by the court or tribunal fixing the award, and not as a
deduction from the value of the land or the right to use the portion of the
railroad right-of-way taken. The remaining award balance and interest thereon,
as well as the award for the land value and interest thereon, shall accrue to
T-Cubed or Railroad. Under no circumstances shall NAIT be entitled to any
portion of the award representing a "bonus value" or difference between the
value of the right to occupy the affected railroad right-of-way and any
sublease payments or any other sums due hereunder.
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Section 10.02. Non-Material Taking. In the event of a non-material
taking or condemnation by any competent authority for any public or
quasi-public use or purpose of the whole or a part of the railroad right-of way
during the term hereof, this Agreement shall not terminate by reason thereof.
For purposes of this Section 10.02, a "non-material taking" shall mean a taking
under the conditions in the preceding sentence that leaves the Fiber Optic
Facilities utilizing the Conduit System (i) operable in a commercially
reasonable manner, or (ii) capable of restoration to service within 6 months of
the date of the taking through the expenditure by NAIT of commercially
reasonable sums. In the event of a non-material taking, NAIT shall not be
entitled to any relief from, or refund of, any Duct purchase price, prepaid
rental, or other sums paid or due hereunder, but shall be entitled to an
equitable adjustment of payments and obligations in the event NAIT is required
to expend sums to restore the Conduit System to service. Except to the extent
it may be prevented by the terms of the order of the condemning authority, and
except as qualified herein, NAIT shall perform and observe all of its
covenants, conditions and obligations as though such non-material taking or
condemnation had not occurred.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
Each party covenants and warrants to the other that: (i) it has full
right, power and authority to execute this Agreement; (ii) it has been duly
incorporated or formed and is validly existing as a corporation or other entity
in good standing under the laws of the state of its incorporation or formation
and is duly qualified to do business in each state in which it is required to
be so qualified to perform its obligations hereunder; (iii) except as set forth
on Exhibit A, no litigation or governmental proceeding is pending, or
threatened in writing, which might have a material adverse effect on this
Agreement, the Project or the rights of the Parties hereunder; and (iv) the
execution and delivery of this Agreement, and the performance of its
obligations hereunder, have been duly authorized by all necessary corporate
actions and do not violate any provision of law or the party's certificate of
incorporation, bylaws or other organic document.
ARTICLE 12
DEFAULTS AND REMEDIES
Section 12.01. Events of Default. Each of the following shall be an
"Event of Default" under this Agreement:
(a) Failure of NAIT to pay (i) any installment of any
Duct purchase price in the full amounts, and at the times, specified in
Schedules C-1 and C-2, (ii) any installment of any prepaid rental in the full
amount, and at the time, specified in such Schedule C; or (iii) any other sum
due hereunder within ten (10) days following notice from T-Cubed; provided,
however, that notwithstanding the foregoing, NAIT shall have thirty (30) days
to cure any failure to pay the initial installments of the Duct purchase price
and prepaid rental in the full amounts, and at the times, specified in Schedule
C-1 and C-2.
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(b) The subjection of any right or interest of NAIT
hereunder to attachment, execution or other levy or to seizure under legal
process, if not released or bonded within sixty (60) days;
(c) The filing of a mechanic's or materialman's lien
against all or any part of any railroad right-of-way because of acts or
omissions of NAIT or its agents, unless released or bonded within forty-five
(45) days following demand by T-Cubed or Railroad;
(d) Failure of either party to perform any non-monetary
obligation within thirty (30) days following notice from the other party;
provided, however, that if such default cannot reasonably be cured within
thirty (30) days, the defaulting party shall have such additional time as is
reasonably necessary to complete a cure (not to exceed one hundred twenty (120)
days) provided such party commences cure within the thirty (30) day period and
proceeds diligently thereafter.
Section 12.02. Termination Upon Failure to Cure. If any Event of
Default shall continue uncured following notice of default as and if required
hereunder, the non-defaulting party may terminate this Agreement by giving the
defaulting party notice of termination.
ARTICLE 13
ARBITRATION
Section 13.01. Commencement of Arbitration. The parties adopt the
following arbitration provisions to avoid the problems of litigation or
deadlock in the event they cannot resolve any dispute between them, including
any failure to reach mutual agreement under any provision of this Agreement
which requires, permits or conditions the occurrence of any event or the
exercise of any right upon mutual agreement of the parties; provided, however,
that (i) NAIT's obligation to pay the Duct purchase prices and the prepaid
rental when due, and (ii) any matter left to a party's sole discretion, shall
not be subject to arbitration hereunder. If a dispute arises from or relates to
this Agreement, the parties agree that upon the request of either party they
shall try in good faith to settle the dispute within sixty (60) days of such
request, following which either party may commence arbitration using the
procedures set forth herein.
Section 13.02. Appointment of Arbitrators. Any dispute as to which a
party commences arbitration shall be referred to a panel of arbitrators
consisting of three (3) disinterested, competent persons, one selected by
T-Cubed, one selected by NAIT, and one selected by the aforesaid two, who shall
have the power of an umpire. If the parties cannot agree on a third arbitrator,
the third arbitrator shall be appointed by the Arbitration Committee of the
American Arbitration Association ("AAA") from the AAA's "large case" panel and
it shall be an attorney with at least ten (10) years of commercial litigation
experience.
Section 13.03. Arbitration Proceeding. After the appointment of the
arbitrators, all proceedings shall be in accordance with the Commercial
Arbitration Rules of the AAA. The decision and award of such arbitrators, or
any two of them, or, in case of disagreement among all
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arbitrators, of the umpire, shall be conclusive and binding. In any judicial
proceeding to enforce this agreement to arbitrate, the only issues to be
determined shall be the existence of the agreement to arbitrate and the failure
of one party to comply with that agreement, and these issues shall be decided
by the court without a jury. All other issues shall be decided by the
arbitrators, whose decision shall be final and binding. The parties agree that
there shall be no appeal of an order completing arbitration except as part of
an appeal concerning confirmation of the decision of the arbitrators.
Section 13.04. Arbitration Venue; Other. The location of the
arbitration shall be Atlanta, Georgia, at a site designated jointly by the
parties, or failing that, by the arbitrators. Either party may apply to the
arbitrators seeking injunctive relief until the arbitration award is rendered
or the controversy is otherwise resolved. Either party also may, without
waiving any remedy under this Agreement, seek from any court having
jurisdiction any interim or provisional relief that is necessary to protect the
rights or property of that party, pending the establishment of the arbitral
tribunal (or pending the arbitral tribunal's determination of the merits of the
controversy). Except as may be required by law, neither a party nor an
arbitrator may disclose the existence, content, or results of any arbitration
hereunder (including in any subsequent arbitration hereunder) without the prior
written consent of both parties.
ARTICLE 14
CONFIDENTIALITY
Section 14.01. Treatment of Confidential Information. During and after
the term of this Agreement, T-Cubed and NAIT (including their respective
employees, officers, agents, directors and affiliates) shall treat as
confidential and proprietary, and shall not disclose without the prior written
consent of the other party (except as necessary to perform this Agreement, and
then only on a confidential basis satisfactory to both parties), any
information, whether oral or written, or any description (including any
technical information, experience or data), of either party's plans, operations
or customers, which may come within its knowledge in the course of negotiating
and preparing this Agreement, or in the course of performing the terms hereof.
Section 14.02. Compelled Disclosure of Confidential Information. In
the event either party is required by subpoena, court, or administrative order
to disclose any confidential or proprietary information it may have received
from the other, it shall give immediate written notice to the other party.
Thereupon, the party whose information is subject to disclosure may interpose
all objections it may have to such disclosure. The foregoing obligation shall
survive the termination or expiration of this Agreement, and shall continue
until a written release is given by the other party.
ARTICLE 15
NOTICES
Any notices or demands by or from T-Cubed to NAIT, or from NAIT to
T-Cubed, shall be in writing and shall be deemed given upon (i) personal
delivery to the addressee, (ii) 5 days
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after deposit into United States mail, postage prepaid, certified mail, return
receipt requested, or (iii) 1 day after delivery to United States Postal
Service Express Mail or similar overnight delivery service. Until notified of a
different address, all notices shall be addressed to the parties as follows:
If to T-Cubed: If to NAIT:
Thoroughbred Technology and North American Infotech, LLC
Telecommunications, Inc. 751 County Road 989
Three Commercial Place Iuka, Mississippi 38852
Norfolk, Virginia 23510-9241 Attn: President
Attn: President
ARTICLE 16
MISCELLANEOUS
Section 16.01. Binding Effect of Agreement. Each of the covenants,
conditions and obligations in this Agreement shall inure to the benefit of and
shall be binding upon the successors in interest of T-Cubed and, subject to any
restrictions set forth herein, the permitted assigns and successors of NAIT.
Section 16.02. Cumulative Remedies. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive that party's right to use any or all other
available remedies. The rights and remedies hereunder are given in addition to
any other rights the parties may have at law or equity, by statute, ordinance
or otherwise.
Section 16.03. Failure to Pursue Remedies. The failure to seek redress
for violation of; or to insist upon the strict performance of; any provision of
this Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation.
Section 16.04. Governing Law. This Agreement and the rights hereunder
shall be interpreted in accordance with the laws of Delaware, and all rights
and remedies shall be governed by such laws without regard to principles of
conflict of laws.
Section 16.05. Integration. This Agreement constitutes the entire
agreement pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto. Any amendment, change,
modification or waiver of the terms, conditions or obligations
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of this Agreement shall be made in writing and signed by the parties' duly
authorized representatives. The parties acknowledge that this Agreement may be
amended to add additional Segments.
Section 16.06. Interpretation. All references herein to "Articles" and
"Sections" shall refer to corresponding provisions of this Agreement. whenever
the words "include," "includes" or including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The words
"hereof," "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
Section 16.07. Force Majeure. Whenever a period of time is prescribed
in this Agreement or any of the Schedules hereto for the taking of any action,
the party subject to such prescription shall not be liable or responsible for,
and there shall be excluded from the computation of such period of time, any
delays due to strikes, riots, acts of God, injunctions, shortages of labor or
materials (not caused by the party seeking the benefit of this Section), war,
governmental laws, regulations, restrictions or takings, or any other cause
whatsoever beyond the control of the party.
Section 16.08. Recordation. Neither party hereto shall record this
Agreement without the written consent of the other party hereto.
Section 16.09. Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
Section 16.10. Survival of Obligations. Any termination or expiration
hereunder shall not relieve either party from any obligation incurred, or
covenant or representation made, to the other party under the terms of this
Agreement.
IN WITNESS WHEREOF, T-Cubed and NAIT have executed this Agreement in
multiple original counterparts, each of which shall be deemed an original, as
of the day and year first above written.
Witness: THOROUGHBRED TECHNOLOGY AND
TELECOMMUNICATIONS, INC.
By:
- ----------------------------------- ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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Witness: NORTH AMERICAN INFOTECH, LLC
By:
- ------------------------------------- ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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